Back in July, I posted an entry about a terrific amici curiae brief (2012 WL 2641847 (2012)) written by Leslie Shoebotham, an Associate Professor at the Loyola University New Orleans College of Law, for Jardines v. State, 73 So.3d 34, 49 (Fla. 2011), one of two drug sniffing dog cases being heard by the United States Supreme Court. The second of those cases is Harris v. State, 71 So.3d 756 (Fla. 2011), and Professor Shoebotham has now drafted a piercing amici curiae brief in that case as well. See Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, 2012 WL 3864280 (2012) [Download Harris Amici Brief]. The issue in Harris is: "Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle." The real question, though, is whether a dog's "certification alone" is sufficient for a positive alert to establish probable cause. And, according to Professor Shoebotham's brief, the answer to that question is a clear "no."

Here was the the conclusion of the Supreme Court of Florida in Harris:

We hold the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability. The trial court must then assess the reliability of the dog's alert as a basis for probable cause to search the vehicle based on a totality of the circumstances.

In arguing for a different conclusion by the United States Supreme Court, the State argued, inter alia, that

•The Supreme "Court's precedents compel the conclusion that a well-trained dog's alert to the presence of contraband establishes 'a fair probability' that a search will reveal contraband - and thus probable cause;"

•"[T]he fact that a drug-detection dog has been trained by canine professionals - and performed successfully in training - is sufficient to establish reliability, absent extraordinary circumstances showing otherwise;"

•"[T]he Florida Supreme Court's demand for evidence negating the possibility of an alert to residual odors rather than contraband stems from its mistaken belief that probable cause requires a mathematical certainty rather than fair probability of contraband. See Brief for Petitioner, 2012 WL 3027354.

In her brief, Professor Shoebotham exposes some serious problems with the State's line of reasoning:

The Path of Totality

First, she notes that the Supreme Court has consistently held in cases such as Maryland v. Pringle that probable cause must be determined by considering a totality of the circumstances on a case-by-case basis. And while, "the State [in Harris] was careful to avoid characterizinging its 'credentials alone' canine-reliability test as an exception to the totality-of-the-circumstances analysis, there can be no doubt but that it is." Indeed, the State "mistakenly assume[ed] that an exception to the totality analysis need only be supported by the same fair-probability burden of proof that is required to establish probable cause" while at the same time "mistakenly requir[ing] 'certainty' that other canine-reliability evidence - i.e., field-performance records - would change the outcome of the 'credentials alone' canine-reliability determination before that additional information could be considered.", As she notes,

In application, the State's canine-reliability limitation would function as a prosecution-oriented variant of the "divide-and-conquer" analysis that the Court rejected in Arvizu....There, the lower court erred when it isolated each of the facts that led to a border patrol agent's Terry-stop of a vehicle and excluded from consideration any fact that, taken alone, the court believed was explainable and therefore not suspicious....In rejecting the lower court's "methodology",...Arvizu refused to require the government to prove that each factor, in isolation, was suspicious, or that any particular factor was determinative of suspicion before the trial court could consider it in a totality analysis....

In this new variant of Arvizu, the State "divide[s]" by assigning a certainty burden of proof to the evidence the State opposes for consideration in the totality analysis, while reserving for the State the more modest fair-probability burden for its "credentials alone" canine-reliability test....By assigning what is close to an impossible burden of proof, the "conquer[ing]" becomes a foregone conclusion once the "divid[ing]" has been done....The State cannot have it both ways. Although the probative value of canine-reliability evidence will vary from case-to-case, the Court has never required that probative evidence be proven to a certainty before trial courts may consider it in a totality analysis of suspicion.

According to Professor Shoebotham, this "divide and conquer" tactic by the State is troubling for several reasons.

Who Let The Dogs Out?

And here are a few of those reasons:﻿

﻿﻿•"A simple recital that a drug-detection dog is 'certified' does not on its own establish the dog's reliability for contraband detection in the field" because "[t]raining and certification standards vary widely between private vendors that certify drug-detection dogs;"

•"[V]ast differences in the various agencies's methodology abound, including (1) the length of pre-certification training...; (2) the length of time that must pass before a non-qualifying drug-detection team can try again to obtain certification...; and (3) the amount of contraband that the drug-detection dog is trained to locate;"

•"Rather than detecting the contraband itself, instead, a drug-detection dog reacts to specific noncontraband substances, which enables police to infer that contraband is also present" but can also lead to false positives;"

•"In Harris, the Florida Supreme Court expressed concern that drug-detection dogs may alert to residual odors, meaning that detection dogs may alert even though no contraband is actually present at the time law enforcement conducted the sniff." (And yet, "the government relies on the rapid evaporation rate of methyl benzoate (120 minutes) as a basis to seize currency.")'

•"Handler error occurs when a handler erroneously interprets a drug-detection dog's ambiguous behavior in the field to be a positive alert to presence of contraband," and "﻿[h]andler cuing...occurs when a canine-handler either consciously or, more likely, unwittingly induces a drug-detection dog to alert positively in the field.

Certification of drug-detection teams, not simply dogs, represents the gold standard for canine drug-detection. It is apparently one of the few things about which the industry is in agreement....Yet, in this case, Aldo and Aldo's human handler were never certified together as a team....In fact, even Aldo's certification with his prior handler had expired months earlier....Thus, based on the industry's own standards, the sniff conducted in this case required further information and explanation concerning the detection dog's reliability for contraband detection in the field.

All of these arguments (and more) illustrate Professor Shoebotham's argument that courts must look beyond the four corners of a dog's certification (or, in Harris, inside those four corners) to determine whether an alert by a drug-detection dog creates probable cause. Such an inquiry, which is what the Supreme Court of Florida ordered, is part and parcel of the totality of the circumstances approach.

The Gold Standard or Pyrite?

Finally, Professor Shoebotham notes that in United States v. Place and Illinois v. Caballes, "[c]anine drug-detection sniffs of luggage and vehicles were accepted as non-searches based on the justifications for warrantless use of this investigative technique - limited intrusiveness and accuracy." Thereafter, in United States v. Jacobsen, in finding that the field-testing of the white powder was not a search, the Court

tied its holding to Place, explaining that Place "dictated" the result that the field test was not a search,...because field-testing, like a canine sniff, could reveal "nothing about noncontraband items."...Therefore, in reliance on the similar accuracy of the two investigative techniques, Jacobsen concluded that chemical field-testing, like a canine drug-detection sniff of luggage, could reveal only the presence or absence of contraband, and accordingly, was not a search for Fourth Amendment purposes.

So, the alleged accuracy of drug sniffing dogs has served as the justification not only for deeming such sniffs non-searches, but it also has been used as the foundation for deeming other investigator actions non-searches. Accordingly, Professor Shoebotham argues that we need to dig beneath the "credentials alone" test to ensure that such sniffs are as accurate as some claim and can serve as the gold standard for non-searches.

In a way, this is similar to the recent argument made against the accuraccy of fingerprint evidence, which used to be the gold standard in forensic science but which has begun to fall into a bit of disfavor.

Conclusion

As with Professor Shoebotham's Jardinesbrief, I was happy to sign onto her Harrisbrief. In essence, the State is asking courts only to consider their side of the accuracy argument and to ignore any defense arguments to the contrary. In many ways, then Harris, is like Holmes v. South Carolina, in which the Supreme Court found that a law that prevented defendants from presenting evidence of alternate suspects once the State presented forensic evidence of guilt violated the right to present a defense. A "credentials alone" test is the antithesis of the totality of the circumstances test, and I see no reason why the Supreme Court should reverse in Harris.